Advocate William Cuschieri is right: all Theuma’s recordings should be made available to the defence lawyers

In the blogs I have been writing regarding the proceedings concerning Yorgen Fenech, I have been arguing on what in law is called the principle of discovery. In other words, the police and prosecution are obliged to present all the evidence they have. They cannot be selective with the evidence they present in court.

This point was mentioned by the lawyers assisting the three men accused of being the hitmen in the murder of Daphne Caruana Galizia. The defence argued that the police and the prosecution are obliged to present all  evidence. They cannot withhold any evidence from the defence.

The defence, quite rightly, is not pleased that the prosecution and the police arbitrarily decide to present only those recordings that they deem relevant to the case. Superintendent Arnaud stated that the police presented only what is relevant! 

Deciding which recordings are relevant or not to the case cannot be decided by the prosecution either.

Personally, I fully concur that it is not even up to the prosecution to decide what is or is not relevant to the case. This goes against the basic principles of discovery.

The newspapers inform us that the presiding Magistrate in this case, Claire Straface Zammi, will give a ruling on this point later on.

However, court sentences are clear on this point. It is not up to the police to decide which evidence is relevant and what is not. As rightly stated by one of the defence lawyers, William Cuschieri, this is not even an issue of lack of trust in the prosecution but a fundamental principle related to the compilation of evidence.

More importantly, the newspapers tell us that Melvin Theuma has not appeared in court. The defence lawyers are right in insisting that they should cross-examine him. I wish to remind readers that Theuma did not turn up even for Yorgen Fenech’s hearing. What is going to happen should the psychiatric report state that Melvin Theuma is not fit to testify? Can one carry on denying bail to the three men and to Yorgen Fenech? What fault do they have if Melvin Theuma is unfit to  testify?

At least, from what has been reported, Melvin Theuma self-inflicted the wounds he sustained when he was found unconscious in a pool of blood at his home and had to be hospitalized. Therefore, it is inconceivable that these three men and Yorgen Fenech have to bear the consequences and are still being kept in jail because Melvin Theuma cannot testify and therefore there can be no definite decision on bail. On her part, Magistrate Stafrace Zammit has deferred the case to January 21 when the psychiatric evaluation of Theuma, considered to be the go-between in this whole saga, will be presented in court.  

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